On March 12, 2000, Gary Ewing, a serial offender with a long history of criminal convictions, was arrested for stealing three golf clubs, each worth $399, from a Los Angeles-area golf course. At the time of his arrest, Ewing was on parole from a 9-year prison term for convictions in three burglaries and one robbery. Under California's three strikes law, another felony conviction would require a sentence of 25 years to life. Ewing was charged with and convicted of one count of felony grand theft for the incident at the golf course. During sentencing, Ewing requested the judge in the case exercise discretion permitted under California law and reduce the conviction to a misdemeanor. The judge declined and sentenced Ewing in accordance with the three strikes law. On appeal, Ewing argued the sentence of 25 years to life was grossly disproportionate to the crime and therefore a violation of the Eighth Amendment protection against cruel and unusual punishments. The court, reasoning that the three strikes law served the state's legitimate interests, rejected this claim. The California Supreme Court declined to hear the case.

Question

Did Ewing's sentence of 25 years to life, in accordance with California's three strikes law, violate the Eighth Amendment protection against cruel and unusual punishment?

No. In a 5-4 plurality decision authored by Justice Sandra Day O'Connor, the Court, relying heavily on its decision in Rummel v. Estelle (1980), concluded that Ewing's long history of legal offenses justified his conviction. In Rummel, the Court had ruled that a sentence of life with the possibility of parole was valid for three convictions of fraud, check forgery, and theft. In that case, the Court gave great deference to legislatures in mandating sentences for repeat offenders. Justice O'Connor writes that, as in Rummel, Ewing's conviction reflects "rational legislative judgment" and "is justified by the State's public-safety interest in incapacitating and deterring recidivist felons."

Mr. Denvir: Mr. Chief Justice, and may it please the Court: In March 2000, Gary Ewing walked into a Los Angeles pro shop, took three golf clubs, stuck them down the pants legs, and walked out

He was quickly apprehended for that crime.

For that crime...

Chief Justice Rehnquist: What was the value of the golf clubs?

Mr. Denvir: Because the value of the golf clubs was approximately $1200, it was grand theft under California law.

For grand theft, as a general matter, California provides a maximum sentence of three years.

It also... because Mr. Ewing had served a prior prison sentence, he would be subject to a recidivism enhancement of one year, so the maximum sentence that he would have faced under California law, but for the so-called,would have been four years in prison, which could have been reduced by one-half by his conduct in prison and his work in prison.

However, because Mr. Ewing had a prior conviction for first-degree burglary, which has been classified as a serious felony by California, and for robbery, which has been classified as a violent felony by California...

Justice Scalia: Was it armed robbery?

Mr. Denvir: He was armed with a knife at that time.

And because of those two convictions, he came under the Californialaw.

And as a result of that, he received a sentence of life imprisonment and with a... with an added bar that he could not even be considered for parole for 25 years.

Justice Kennedy: Would it be fair to add that another reason for the sentence was that the judge did not disregard the priors, and that was because the judge had the record in front of him and the record showed other... a history of other offenses?

Would that be a fair statement?

Mr. Denvir: It is correct, Your Honor.

It... the judge did have discretion to strike the priors or to reduce this wobbler offense to a misdemeanor.

She declined to do so, partly on the basis of his prior record.

His prior record were all misdemeanor convictions prior to that time.

But...

Justice Kennedy: They were all misdemeanors?

Mr. Denvir: Yes, Your Honor.

All his... he had... the prior convictions that he had were felonies were four felonies, all occurred within one year, in 19... in one month, in 1993.

There were three first-degree burglary convictions, and then there was one robbery conviction.

He had other...

Chief Justice Rehnquist: Well, now, those surely are not misdemeanors.

Mr. Denvir: No, Your Honor.

I was... I thought Justice Kennedy's question was directed not to the... what they call the,but to the fact that he did have other...

Justice Breyer: Oh, other than...

Mr. Denvir: previous crimes that were misdemeanors.

Chief Justice Rehnquist: other than the burglaries.

Mr. Denvir: I think that's... the sentencing judge relied on that, to some degree, in denying him any discretionary...

Justice Scalia: Now...

Mr. Denvir: relief.

Chief Justice Rehnquist: it actually went back to 1984, didn't it, with grand theft in '84, grand theft in '88?

Mr. Denvir: Your Honor, the grand theft actually was a misdemeanor, as we've shown in the appendix to our reply brief.

There was... there was a misconception that that was a felony.

And in fact, it was a misdemeanor in Ohio, the first...

Justice Ginsburg: That was the Ohio offense.

Mr. Denvir: I...

Chief Justice Rehnquist: The...

Mr. Denvir: I'm sorry.

Justice Ginsburg: the one that was alleged to be a felony, I think, in the government's brief...

Mr. Denvir: Is in...

Justice Ginsburg: I think that it was only a misdemeanor.

Mr. Denvir: In fact, we've attached the governing court records as an appendix to our reply brief that shows it was a misdemeanor.

Justice Scalia: How many... how many convictions in all, felonies plus misdemeanors?

Mr. Denvir: Your Honor, I believe that he had the four... the four prior convictions... the strike convictions, the felonies, and I think he had another nine misdemeanors, and then this present offense.

I think that's the...

Justice Scalia: And the purpose of the three-strikes law, as I understand it, is to take off of the streets that very small proportion of people who commit an enormously high proportion of crimes.

I forget what the statistics are, but it's something like, you know, of those convicted, 20 percent commit 85 percent of the crimes.

It sounds to me like your client is a very good candidate for that law.

Mr. Denvir: We got... we got...

Justice Scalia: I mean, if that's a reasonable law.

It seems to me this is precisely the kind of person you want to get off the streets.

He's obviously going to do it again.

Mr. Denvir: Your Honor, we believe that the law, in itself, is not unreasonable and it could result in a proportionate sentence.

It did not in this case.

Under this court's decision in Solem versus Helm, the Court has said that you can look to the prior record as relevant to the sentencing decision because it aggravates the present crime, but the focus must remain on the present crime.

They're really three different points, and Solem is probably the case that favors you most.

But certainly Rummel is good law, and Harmelin is good law.

And I think those cases don't favor you.

Mr. Denvir: Well, Your Honor, I believe that Rummel... the Court said in Solem... the majority opinion said that Rummel would be controlling only in a similar factual situation.

We do not believe we have that here.

And as far as Harmelin was concerned, the basic principles of Solem were reaffirmed by seven justices in Harmelin and, we believe, when applied here, will show that this is a grossly disproportionate sentence.

Because some of the... some of the points that you make seem to be going to the statute wholesale.

So, for example, you talk about it... the statute's infirm, because it has no washout for aging offenses, but there was no such offense at stake here.

The strikes were all rather recent.

Mr. Denvir: That's correct, Your Honor.

And...

Justice Ginsburg: So...

Mr. Denvir: and to answer your question, we are challenging only the sentence that Mr. Ewing received for the crime that he committed, that he was sentenced at.

There's much discussion on both sides of... as... I... as the background of the three-strikes law.

We have no doubt the three-strikes law could result in a... in a constitutional sentence.

It did not, in this case.

So however the scheme is that reached this sentence, this life sentence for stealing three golf clubs, that sentence is... falls under the Eighth Amendment, in our view.

Justice Ginsburg: But we... so we should leave out things like no washout, that someone who never served any time would subject to the three strikes...

Mr. Denvir: I think that's correct, Your Honor, that they don't play into this case.

And I think that... as I said, that the three-strikes law is merely... it's the process that produced an unconstitutional sentence.

It could have been produced by a different sentencing scheme, also.

Justice Kennedy: Well, when we're examining the constitutionality of the three-strikes law, as applied to this sentence, we should take into account, should we not, the purposes of the California law, which was to have a law which was... gave simple, clear notice of the three-strikes policy?

And if you want us to take case-by-case, then that whole policy is undercut, it seems to me.

Mr. Denvir: Well, Your Honor, I don't... I don't think that's true.

In Solem v. Helm, the Court made very clear that it was looking only to the sentence that was imposed on Mr. Helm.

Justice Kennedy: Yeah, I was going to ask you about that, because you had said that the principal focus has to be on this sentence.

I'm just not sure what your authority for that is when we have a recidivist scheme of this kind.

The focus there was on number of prior offenses, as opposed to the nature of the prior offenses.

The Court said that the defendant, under double-jeopardy principles, cannot be punished for those prior crimes; however, they are relevant to the... to the sentence imposed for the present crime.

And the... and the reason they are relative... and the Court said this best in Gryger versus Burke... is what they... what they... what they authorize is a, quote,

"stiffened penalty for the latest crime, which is considered to be an aggravated offense because of repetitive one. "

That's at page 8 in our reply brief.

But what Solem v. Helm made very clear is, although the prior crimes are relevant, the focus must remain, when judging proportionality or gross disproportionality, on what this... what this defendant did at this time, what he is being sentenced for at this time.

Justice Kennedy: I'm just not sure how that works.

What am I supposed to do with recidivism as a factor in analyzing this sentence?

Mr. Denvir: Your Honor...

Justice Kennedy: Give it some weight, but not controlling weight, or something like that?

Mr. Denvir: I think that what the Court can say is that his prior crimes are relevant, in the sense that they make this crime a more aggravated crime than a crime committed by a first offender...

Chief Justice Rehnquist: Well...

Mr. Denvir: and that there can be a reasonable enhancement for that.

But in this case, he has been sentenced to... he has... his sentence has gone from a maximum of three years for a first offender to life, all based on the recidivism.

Justice Stevens: Well, why...

Mr. Denvir: At that point...

Chief Justice Rehnquist: why can't the State say that... where a person has a string of convictions like this man has, that it's time to get him off the street, as Justice Scalia says, that he simply cannot conform to the law?

Mr. Denvir: Your Honor, if he, in fact, committed a crime at this point that was a serious or a violent crime, they may have a basis, but what the Court has said very clearly is that...

Justice Breyer: What...

Mr. Denvir: is the focus remains on this, because otherwise...

Justice Souter: What...

Mr. Denvir: he's being punished for the prior crimes.

I'm sorry, Your Honor.

Chief Justice Rehnquist: Well, what's the reason for saying that though... that you can only... that the focus remains on this crime, but others are relevant?

I mean, that really is kind of meaningless, it seems to me.

Mr. Denvir: Well, I don't think so, Your Honor, because, as I say, what the Court has said over the years is that the important part about the prior crimes is that it shows that this is a repeat offense.

And the fact that he has committed offenses in a row makes this particular offense worse.

The fact that he has committed worse offenses in the past does not aggravate this crime.

I... this is... this still remains shoplifting three golf clubs, regardless if he had been a triple murderer or anything else, and that's what he's being punished for.

Because if he's being punished because of those prior crimes, their nature, there's really serious double jeopardy...

Justice Scalia: What do you think would be enough?

Thirty years?

Would you like 30 years for walking off with three golf clubs?

Mr. Denvir: Your Honor, I... the... if you... if you look at our...

Justice Scalia: I mean, if you're going to look on it as just stealing three golf clubs, and cast a blind eye to his long record of criminal activity, I don't know why you can give him any more than, you know, a couple of years.

Mr. Denvir: Well, Your Honor, if you look to our... to the comparison with other jurisdictions... and I just don't think this has been highlighted in our brief... there are only... there are only five jurisdictions that would have allowed a life sentence.

There's only one additional jurisdiction, Montana, that would have allowed a term of years as great as the minimum sentence here, and that's... Montana allows... is five to a hundred years.

And most states allow for either grand theft or recidivist grand theft...

Justice Breyer: But we said...

Mr. Denvir: ten years at the most.

Chief Justice Rehnquist: we said in Rummel, there's always going to be some state that punishes more harshly than others.

And certainly it was not intimated that that state, therefore, would... it was cruel and unusual.

Mr. Denvir: No, that's correct, Your Honor.

In Solem v. Helm, the Court noted that he could... that Mr. Helm could have received a comparable sentence in one other state, and nevertheless held that it fell under the Eighth Amendment.

Justice Kennedy: Well, just help us one more time.

The prior history is relevant, but then how relevant?

Mr. Denvir: Well, Your...

Justice Kennedy: You say the principal focus has to be on the three golf clubs, like we're some judges out of Victor Hugo or something and that's all we have to focus on.

But this... there's a... there's a long recidivism component here, and that's the whole purpose of the California law that you're asking us to ignore, it seems to me.

Mr. Denvir: Your Honor, and... what I'm saying is... I'm going back to what the Court said in Solem v. Helm in its analysis, which I think is controlling here.

It made... it made the point that the... the prior convictions... he cannot be punished for those, but they do aggravate this present crime that he's being punished for.

And the way they aggravate it is that... is that this shows that it's a repetitive offense.

Now, he can have a reasonable enhancement of the normal penalty for grand theft based on the repetition aspect of it, but at some point it becomes unreasonable.

And it becomes unreasonable if you go from three years to life based on his prior crimes.

At that...

Justice Scalia: Why isn't is reasonable to say if he commits another felony... he's committed, you know, three already and nine other convictions... ,California tells him,

"and you go away for life. "

Why isn't that reasonable?

And this... and this was a felony.

Mr. Denvir: Because of the nature of the crime that he committed, which is stealing three golf clubs, a crime that is not deemed either serious or violent under California law.

Justice Scalia: But is a felony under California law.

Mr. Denvir: It is a felony.

It's actually a wobbler and could be charged either way.

Justice Breyer: Why...

Mr. Denvir: But in this case, it's a felony.

Chief Justice Rehnquist: Why can't California decide that enough is enough, that someone with a long string like this simply deserves to be put away?

Mr. Denvir: Well, Your Honor, if that were true, then there would be no limiting principle on recidivist laws under the Eighth Amendment.

It would... at that point, you could say the mere fact that he broke any law... if he broke a traffic offense... a petty offense would show that he couldn't follow the law and could get a life sentence.

Justice Scalia: Oh, I'd be with you there, if it was a misdemeanor or, you know, some... but this is a felony under California law.

Mr. Denvir: It is a felony, and it's one of the least grave felonies in California.

Justice O'Connor: But we have given... we've said, at least, here, that we are going to give great latitude to state legislatures in determining how many years to give, and how to categorize an offense.

Why don't... why don't we look to the Harmelin case for the standards, rather than Solem?

Harmelin came later.

Mr. Denvir: Well, Your Honor, I think you do, because, as I understand the Harmelin case, if you take the dissent and the plurality, they both agreed on the basic principle here, which is that there cannot be gross disproportion between the offense and the sentence.

And the reason I go back to Solem versus Helm is that it was a recidivist case and there was some further information.

I don't... as I read the Court's opinion, at least the plurality opinion, in Harmelin, the big change was that you would... you would not look automatically to intra-jurisdictional or inter-jurisdictional comparisons.

You would first have to find an inference of gross disproportionality before you'd go to the second... the other two steps.

That's what I understood to be the major... the major refinement of Solem v. Helm that was in the plurality opinion.

Justice Breyer: I'm slightly stuck on this, because I... I'd like... there is some relevant information that I can't get a hold of, and you may some in your experience, but it isn't in the brief.

Imagine... let's take the set of people who have committed at least two serious crimes or more, maybe 50 serious crimes.

They're very serious criminals.

And they're warned,

"If you do anything again, you've had it. "

So think of that set of people.

Now, I would like to know, in light of that set of people, now one of the members of that set commits a crime equal to stealing $1200... whether they steal $1200 or equal to that; that's a very subjective judgment... what's the longest sentence such a person has ever actually served?

Here, they are going to 25 years, real years.

And the second question I'd like to know is, What is the least bad crime that such a person ever committed who did serve 25 real years?

Mr. Denvir: Well, Your Honor...

Justice Breyer: I'd like to know both of those things.

And, obviously, they're find-outable.

Mr. Denvir: I... let me see if I can answer your question.

As far as under the three-strikes law, there is... because it sets this absolute minimum of 25 years... it's a life sentence, but it adds a kicker to it which says, unlike other life sentences, you have to wait at least 25 years before you can even be considered.

So we... since this law was passed in 1994, we have no experience with this law.

Justice Breyer: Obviously, I don't want experience...

Mr. Denvir: Right.

Justice Breyer: under this law.

That would be circular.

Mr. Denvir: Well, Your Honor...

Justice Breyer: What I'm looking for is, in the absence of this law...

Mr. Denvir: Oh, I'm sorry.

I understand...

Justice Breyer: in the absence of this law, what is the longest sentence a person like yours... and I'm definingto be a really bad criminal who now will commit another crime equal to or the same as stealing $1200.

And there's loads of records... I mean, in the California Adult Authority before this law was passed, et cetera.

And the second question is, What is the least bad thing such a person who really served 25 years did?

Mr. Denvir: Your...

Justice Breyer: That... those are empirical questions, and you're talking about this being unusual.

I don't know if it's unusual unless I know what happened to other people.

Mr. Denvir: Well, Your Honor, I don't... I... there's nothing in the record that would answer that, but let me see if I can answer it in a different way.

But for the three-strike law, Mr. Ewing, with his record, could receive no more than four years.

Now, there are other recidivist laws in California besides the three-strike law.

Justice Breyer: Under the California Adult Authority, which was only the law in California for 70 years, people could receive very, very, very long sentences.

Mr. Denvir: They could, Your Honor, and California is...

Justice Breyer: And... not this long for this thing, but... but... but...

Mr. Denvir: I think that's right.

I think the long sentence... the... California substituted determinate sentencing law for indeterminate in 1977, and... but under the old indeterminate sentencing law, my clear recollection is that those long, indeterminate sentences were always triggered by serious or violent felonies, and that is something that...

Justice Breyer: No, they... I've looked it up, actually...

Mr. Denvir: No?

Justice Breyer: and you're quite right that this is not as... you couldn't get this long a sentence, but you could get a pretty long one for being a third offender and committing a property crime.

Mr. Denvir: And...

Justice Breyer: But I... that doesn't tell us how long the people actually served.

Mr. Denvir: Well, Your Honor, if you look for the question of parole in California, which the... which the State suggests is... saves his life sentence, the Court looked at this in 1995 in the case California Department of Corrections versus Moralez.

And what the Court said at that time was that 90 percent of all defendants who came up for their first parole hearing were found unsuitable for parole and that 85 percent were found unsuitable at subsequent hearings.

Now, that has not improved any, because, as you'll see in the amicus brief of Families Against Mandatory Minimums, at page 18, as of 2000, the Board of Prison Terms, which is the... which is the parole authority... their official records show that they only recommended parole in 1 percent of the 2000 cases that came before them with a life sentence.

Justice Scalia: Mr. Denvir, can't the people of... this thing, by the way, was not adopted by the legislature, was it?

It was adopted by plebiscite, of the people of California...

Mr. Denvir: By both, Your Honor.

Justice Scalia: By both.

Mr. Denvir: Both by legislature and by...

Justice Scalia: By plebiscite.

So the people of California decided,.

hy do we have to be bound by whatever the more permissive scheme was earlier?

Mr. Chertoff: The people of California knew that scheme, and they decided,

Justice Scalia: "This is no good. "

"We still have too much crime. "

"We're not punishing people enough, or we're not keeping them... keeping them incarcerated long enough. "

Why do we have to be bound by whatever the previous record was?

Mr. Denvir: Well...

Justice Scalia: It seems to me the question before us is, Is it unreasonable to put away somebody who has this record?

Mr. Denvir: Your Honor, first of all, as to the question of initiative versus legislation, it is my understanding that the Court, in other areas, has said that there's no greater deference given to one than the other.

But the other question is, there's no doubt that some deference has to be paid by this Court to legislative judgments or initiative judgments in the questions of punishment and in dealing with recidivists.

The Court has made that very clear.

But it is that deference that has led to the Court setting a very forgiving standard.

The Court said that it would not require, in this area, or as excessive fines, strict proportionality between the crime being punished and the sentence.

It has said it was only when there was a gross disproportion, and that's a very deferential standard.

That is a standard that allows the legislature to make many reasonable judgments, but says that...

Justice Ginsburg: So how do you decide...

Mr. Denvir: some judgments are unreasonable.

Justice Ginsburg: how much is too much?

Mr. Denvir: Well, Your Honor...

Justice Kennedy: What's the...

Mr. Denvir: life imprisonment for... for the crime of stealing three golf clubs, we believe, is cruel and unusual punishment.

Justice Breyer: It's not life imprisonment.

But we're just doing...

It's 25 years.

Mr. Denvir: Your Honor...

Justice Breyer: It's 25 years that he'll really serve.

We know that.

As far as... what happens after those 25 years is a matter of parole or a decision by other people.

Mr. Denvir: Your Honor, the sentence that he's been given is life in prison.

He's been consigned to die in prison unless some administrative agency determines to let him out.

And as I've just quoted you...

Justice Breyer: But I mean, parole, in all the cases you're citing, is relevant, so you can describe it as you want.

We both know what the facts are.

The facts are he has to be in jail for at least 25 years, and then he might be paroled.

Mr. Denvir: And he might be, but on... there is no... there is nothing in this record that would suggest he has a reasonable expectation in that regard.

In fact... in fact, what's before the Court would suggest that there is not a reasonable expectation, particularly if the animus that drives... that drove the passage of this law continues for 25 years and they still think,

"Well, gee, if they committed these prior crimes, they ought to be locked up for life, because they may commit other crimes. "

Justice Ginsburg: In the statistics that you were quoting, though, those were not three-strikes cases.

Mr. Denvir: Those are not three-strikes cases.

Justice Ginsburg: Those are cases where people might have gotten reduced time for good behavior...

Mr. Denvir: That's correct.

Justice Ginsburg: none of which is... and one question I wanted to ask you, In view of the infirmities of Mr. Ewing... is he still alive?

Mr. Denvir: He is alive, Your Honor.

He is...

Chief Justice Rehnquist: Counselor...

Mr. Denvir: he's lost... he's aged and has lost eyesight in one eye as a result, but he's still alive at this point...

Justice Breyer: How old was he at the time of sentence?

Mr. Denvir: He was 38 years old.

He's 40 years old now.

So...

Justice Scalia: Counselor...

Mr. Denvir: as a practical matter... I mean, this... 25 years is probably a life sentence for him, unless there's some major medical development that...

Justice Souter: Mr. Denvir, you conceded a moment ago that the prior offenses can be considered for purposes of treating this offense as an aggravated offense, given the prior record; and yet when you answer... you've done this more than once... when you have answered the question of going to disproportionality, you have said,

"It's 25 to life for stealing three golf clubs. "

I don't think you can have it both ways.

Either your argument is it's 25... the appropriate comparison is... or the appropriate characterization is

"25 to life for three golf clubs. "

in which case you, in effect, are telling us,

"Ignore the priors; they don't aggravate. "

or you've got to say,

"It's 25 to life for stealing three golf clubs when you have a prior record. "

whatever it was, nine prior offenses, including four felonies, in this case.

Which is it?

Because I assume it may well affect the result.

Mr. Denvir: Your Honor, I... if... I misspoke.

What we say is the focus must be on the present offense.

It is an aggravated offense.

He is a repeat...

Justice Souter: But when you said that...

Mr. Denvir: a repeat offender.

He is a repeat offender.

He is someone who committed this offense with a prior record of offenses.

Justice Souter: Is it inconsistent with your position... when you say,

"The focus must be on this offense. "

is it inconsistent with that to say,

"This offense... is stealing three golf clubs worth $1200 by somebody with a prior record of nine offenses? "

Is that consistent with putting the focus on this offense, in the terms that you're using?

Mr. Denvir: I think it is, in the sense that it shows that there has... there has been some... there has been a series of repetition.

But what I'm suggesting to the Court is that regardless of the repetition, the fact that it's a repetitive offense, if the focus remains on what he did now, the triggering offense, which, under Solem v. Helm, is the focus, then no matter what he has done in the past, no matter how much repetition, it is... it is grossly disproportional to sentence him to a life sentence.

At that point...

Justice Souter: A hundred prior instances of stealing three golf clubs would not affect the analysis then on your view?

Mr. Denvir: Your Honor, if there... if there were a... if there were a series of crimes of the same nature... for instance, if there...

Justice Souter: Well, I've just... I've just given you one.

Mr. Denvir: Yes.

Justice Souter: A hundred prior... three golf clubs every time, a hundred times... would that justify the treatment that he has gotten?

Mr. Denvir: Your Honor, I think that that would... that would show a propensity to steal golf clubs, but, again, I don't believe...

Justice Souter: I would concede that, but the...

Mr. Chertoff: [Laughter]

Mr. Denvir: I don't believe...

Justice Scalia: Posit further that his score has not improved.

Mr. Chertoff: [Laughter]

Mr. Denvir: He shouldn't be penalized for that.

That may be beyond his control.

Justice Souter: Okay, but if we... if we've got our crazy example of a hundred priors exactly like this, and we follow your verbal criterion at least of focusing on this event as aggravated, would this be disproportionate, grossly?

Mr. Denvir: I believe that life is, because it is still... the crime that has to be punished... I mean, and this is what the Court said in Solem v. Helm... this is...

Justice Souter: Well, maybe we were trying...

Mr. Denvir: you know, in Solem v. Helm...

Justice Souter: maybe we were trying to have it both ways verbally because we were imprecise.

But with respect, I think that's what you're trying to do.

Because on the one hand, you concede, yes, it may regarded as an aggravated offense in light of the priors, and then in the next breath you say,

"But the focus has got to be on this offense. "

Mr. Denvir: Your Honor, I... Your Honor, there's no doubt that the prior record... and the Court has said that is relevant to the punishment for the present crime, and it does aggravate it.

But there are limits to how aggravated shoplifting three golf clubs can be, no matter what has happened before...

Mr. De Nicola: Mr. Chief Justice, and may it please the Court: First, I think, in answer to Justice Breyer's question, I don't know what the statistics are under the old indeterminate sentencing law that was in effect in California until 1976

But in a way, I think the... Your Honor's question triggers an issue that I think is central here.

The ISL, the old California law, was premised very explicitly on a penological theory that emphasized rehabilitation of the offender.

I think the question that's raised in this case, and it's a question that's particularly apt in light of the Harmelin opinion, is, When can a state decide that they're going to move away from a more lenient policy of rehabilitation or extending leniency to a first-time offender, and move toward a policy, a tougher policy, of incapacitation?

Justice Breyer: So, tell me, am I fair to say assume there never, in the history of the United States, has been a person who... of the set... I'm only... I don't want to be pejorative; I want to characterize it your way, and I'll characterize it as taking the set of very serious criminals with very serious records, and a person in that set commits another crime, and the other crime is approximately theft of $1200... and am I fair in saying there hasn't been, ever, a sentence in the history of the United States in the last hundred years anywhere close to this one?

And I base that on my knowledge... which you could get; it's public... of 35,000 real cases in the federal system where to get a sentence like this one for a prior offender, you had to... you have to now, you know, hijack an airplane, commit murder, something really serious beyond belief compared to this, and that the worst sentence you could get for something like this is about four, five years.

And then I look to the California Adult Authority, and I see, under that sentencing, nobody could have gotten more than ten real years, and, indeed, the average was somewhere around five.

And you have all those records, and you have come up with nothing in your brief.

And therefore, can I say... my assumption is, this is by an order or factor of two or three times higher than anyone ever was sentenced before in the United States for such a thing?

You see, I'm making a very extreme statement empirically, and I want to know what the response is to my statement, and I want to know why I shouldn't hold you to my statement since you have the information, and why I shouldn't say that's just way too much.

Mr. De Nicola: Well, again, Your Honor, I... the... my answer is that I do not know what those records would have shown.

Justice Scalia: I guess he shouldn't hold you to it, since you don't have the burden of persuasion here, do you?

I thought you're defending a... a decision below.

Mr. De Nicola: Yes, and I did interpret the issue to be a proportionality issue rather than an unusualness issue.

But I do... something in the recesses of my mind tells me that we had a three-time loser statute in California, and I think that put people away for life without parole.

Justice Breyer: Well, all right, how do we decide... how do we decide if you say, of this serious set of criminals, you go to jail for life if you jay-walk... I mean, the next time.

Is that... is that disproportionate?

How am I supposed to say what is or was... is not if I don't look to the empirical facts?

And I'm not holding you to present empirical facts.

I'm just saying, Why shouldn't I decide on the basis of empirical fact that is available?

Mr. De Nicola: Well, in our view, the most prominent, kind of, objective factor that this Court could look to in weighing this sentence is what the legislature has said are felonies.

What California has done in this case is, they've narrowed their target to a subclass of felons who have committed what the legislature has deemed to be... and I think what, on the face of it, can reasonably interpreted as being... serious or violent crimes.

Chief Justice Rehnquist: What's the limit for being... what is dividing line between grand theft and petty theft in California?

Mr. De Nicola: Four hundred dollars, Your Honor.

Chief Justice Rehnquist: When I went to law school, it was $100, except if it was citrus that you stole, it was $50.

Mr. Chertoff: [Laughter]

Mr. De Nicola: Now it's $100 if it's citrus.

[Laughter]

But once there is that predicate of serious or violent felonies set in place, then what the three-strikes law does is, I think, reasonably moves toward a policy of incapacitation upon the commission of, not just any new crime, not a misdemeanor or an infraction, but a new crime that the legislature has...

Justice Stevens: One of the things that puzzles me about the statute... maybe you can enlighten me... I thought that if there were two priors that were violent but not related to property, such as murder and rape, that the third related to property wouldn't trigger the statute.

Mr. De Nicola: No, Your Honor.

The way the statute is written is that if the prior felonies meet the statutory definition of being serious or violent... if you have two of those, then any new felony triggers the three-strike sentence.

Justice Stevens: Even if you... if you had, say, a murder conviction and a rape conviction and then you committed a wobbler that was a property crime?

Would the statute treat that as a third strike?

Mr. De Nicola: Yes, because wobblers are felonies, by definition, in California, and any felony qualifies.

Justice Stevens: Regardless of the character of the first two strikes.

Mr. De Nicola: As long as the first two strikes meet the level of being serious or violent, which...

Justice Stevens: I see.

So... and there's no requirement that it be related to property.

I misunderstood.

Mr. De Nicola: No, Your Honor.

Justice Scalia: All right.

Justice Breyer: Also, I don't know how to work with felony and misdemeanor, because, across the nation, my impression is that those are classified in very different ways, and they are classified sometimes according to the prison that you serve in, as in Massachusetts, and sometimes you can find a felony that, in ordinary common sense, is a lot less serious than certain misdemeanors.

That's why I'm very pushed to know what to work with unless you work with empirical fact.

Mr. De Nicola: Well, we... in California, the felony is defined by the... not just the locus of where the term will be served, but also by the length.

It's more than a year.

And we think that that's a traditional line of demarcation between offenses that, over the course of time, society deems to be of elevated seriousness.

Justice Scalia: I think some of our constitutional jurisprudence makes it... makes... turns upon the distinction between felonies and misdemeanors, doesn't it?

Mr. De Nicola: Yes, Your Honor, I think that is so, and there are political restraints on the legislature in enacting laws in general applicability.

There are certainly economic restraints on a legislature in deciding to set a punishment scheme that provides for long terms of imprisonment.

That's costly.

And that to... for a court to second-guess that, comes, we think, perilously close to the court suggesting that the legislature can, in some instances, not declare a certain crime to be a felony, but must declare it to be a misdemeanor, and we don't think there's anything in the Court's jurisprudence that would... that would support that type of an intrusion.

Justice Ginsburg: Mr. De Nicola, there's a lot of discretion built into this scheme.

It comes across as three strikes and you're out, and that's it; but it's not.

There's discretion in the prosecutor and discretion in the judge.

Are there, in Los Angeles or in California, any guides to prosecutors in exercising their discretion, say, whether to treat a wobbler as a misdemeanor or a felony?

Mr. De Nicola: There are no statewide standards.

Each elected district attorney in the various counties in California has the option of promulgating guidelines.

Some of them have.

And the fact of the matter is some of them... some of them differ.

We think that's a rather unremarkable event in light of the fact that prosecutorial discretion is always going to lead to some sort of different approach depending on local conditions.

But there is not, as far as I know, any statewide guideline, and certainly nothing that would be binding on the local prosecutors.

Justice Ginsburg: The prosecutor can charge something as a misdemeanor.

As far as the striking a strike is concerned, is that solely for the judge?

Or, I suppose, it depends on what's charged.

The prosecutor can decide not to charge two strikes.

Mr. De Nicola: Yes, the prosecutor, under the statute, is required to allege the priors, but the prosecutor may seek dismissal of the prior strikes either in the furtherance of justice, or because of problems of proof.

But the judge also has authority to strike strikes, even without the consent of the prosecutor, in California.

And so...

Justice Ginsburg: And similarly, to reduce a wobbler to a misdemeanor.

Mr. De Nicola: Yes, the prosecutor, in a way, has that discretion, because he or she can charge a... an alternative felony or misdemeanor as a misdemeanor in the first place, but even under the three-strikes law, the trial judge retains the discretion to sentence a... an alternative felony misdemeanor as a misdemeanor, and that would take the case out of the three-strikes scope.

Justice Stevens: May I ask you a question about your theory of the limits of the constitutional protection here?

Supposing the offense was speeding... and it can be dangerous speeding... and you had a... you said that... 15 arrests for speeding gives you this very sentence we got in this case.

Would that be permissible, do you think?

Just on the theory that Justice Scalia has explained... where this guy is just too dangerous, we just don't want him on the street anymore, so we'll put him in jail for life, 25 years without possibility of parole.

Mr. De Nicola: Well, we think that might possibly be constitutional, Your Honor.

I...

Justice Stevens: Possibly be constitutional or unconstitutional?

Mr. De Nicola: Might possibly be constitutional.

I think it's more likely that it would be...

Justice Stevens: Well, why wouldn't it clearly be constitutional if we're thinking about protecting the public from repetitive offenders?

Mr. De Nicola: Well, because I think the limiting principle that we're seeking here, Your Honor, is one that's premised on the felony classification.

If the...

Justice Stevens: Do you think the statute would have been unconstitutional if they had said it's a misdemeanor when it's $1200... if the legislature just, say, called the three golf clubs for $1200 by a misdemeanor instead of by felony, would that change the constitutional analysis?

Mr. De Nicola: It... I think it would make the constitutional... it might change the constitutional analysis.

It might make the result different.

I think, again, once you have the predicate in place of the serious or violent felonies, then I think the reason you're...

Justice Stevens: But serious or violent... it really doesn't have to be violent; it has to serious.

But you could have had $1200 thefts, four or five of them, and he would still qualify, wouldn't he?

Mr. De Nicola: No, Your Honor.

If... the prior crimes have to qualify as serious or violent under the definitions of a separate statutory scheme, so they would not...

Justice Stevens: But are there not serious crimes that are not violent?

Mr. De Nicola: Yes, I think that's true.

There are serious crimes where no injury is inflicted, but the crimes, I think, by their nature, tend to be crimes where the prospect of violence is rather imminent.

I think it might be permissible to do it, provided that the sentence allows for a possibility of parole, after the...

Justice Stevens: After 25 years.

Mr. De Nicola: Yes.

That would distinguish it from Solem, Your Honor.

But nevertheless, here, the predicate, even though the prior crimes don't necessarily have to involve the actual infliction of violence, they are crimes that by their nature...

Justice Stevens: But in your view, violence is really more significant than the number of prior offenses, if I understand you correctly.

Mr. De Nicola: Well, I think it might be a sliding scale, but I think violence does play a significant role and can justify a scheme like this, even in the absence...

Justice Stevens: Okay.

Mr. De Nicola: of a great number of priors.

Justice Stevens: But you... but I'm not quite sure what your view would be if there were no violence, but just seven or eight high-speed offenses, say, speeding, or $1200 golf clubs.

Mr. De Nicola: Well, we think a lot would depend on whether the legislature in the jurisdiction had determined for... for... on an historical basis and for reasons independent...

Justice Stevens: Well, speeding is dangerous.

People get hurt in automobile accidents.

It seems to me it's exactly the same risk to the public that you have with this kind of crime.

Mr. De Nicola: But we think... if the legislature declares those to be a felony, then I think we become a lot... we come a lot closer to...

Justice Stevens: It depends on what the legislature calls the offense.

Mr. De Nicola: Yes, it does, Your Honor, in a very significant respect, because what the legislature calls the offense in connection with it being a misdemeanor or a felony does reflect, we think, a reliable longstanding consensus of the... of the community.

And under the Harmelin principles of deference and reliance and objective factors, we think that's a prominent objective factor.

Justice Breyer: On Justice Stevens' hypo, taking it one step further, I guess we would have to say that if there were 15 prior speeding offenses, and they had been classified as felonies in California, that there was no disproportion between 25-to-life for 15... with a predicate of 15 prior speeding offenses, on the one hand, and the penalties for torture and murder, on the other hand.

Because I think it's undisputed that the only standalone penalties that are this great are the penalties for torture and homicide.

That would be rather a stretch, wouldn't it, regardless of whether the legislature wants to put a felony label on them or not?

Mr. De Nicola: Well, again, Your Honor...

Justice Breyer: Speeding's important, but...

Mr. De Nicola: Yes.

Justice Breyer: I mean, torture and murder?

Mr. De Nicola: I do think that it is a much tougher case for us, and I'm not at all certain that it would be constitutional if all of the crimes, the predicate through the new crime, were simply speeding.

I think...

Justice Ginsburg: Might it be an abuse of the judge's discretion not to reduce such a... if it's a wobbler, in such a case, or not to strike a strike?

Mr. De Nicola: Well, I don't... in the California context, the question would only arise... well, I don't think it would arise at all, because you wouldn't have a speeding... even as a predicate, any felony-triggering events, and the speeding wouldn't qualify as a serious or violent felony under the statute anyway.

So this hypothetical is very far removed from the three-strikes scheme that California has in place.

Justice Scalia: I would have thought that your response to Justice Souter would have been that it might seem disproportionate insofar as the penal goal of punishment or retribution is concerned, but it depends on what you want your penal goals to be.

California has decided that disabling the criminal is the most important thing, and in... from that point of view, it's not necessarily disproportionate.

The one is disabled as the other.

Mr. De Nicola: Well...

Justice Scalia: I mean, proportionality... you necessarily have to look upon what the principal objective of the punishment is.

If the objective of... if the objective is retribution, then, sure, I guess it's disproportionate to execute somebody for killing only one person, when you do no more than execute somebody for killing 20 people.

But if your purpose is disabling the criminal, I'm not sure that it... that the example that Justice Souter gave is disproportionate.

Mr. De Nicola: Well, again, Your Honor, I don't... I don't think I would absolutely concede that it would be unconstitutional.

I'm just saying that...

Justice Souter: Well, do you adopt Justice Scalia's analysis?

I mean, this came up in the briefs, and this was an interesting point.

Does the State, for purposes of proportionality analysis, have the option to adopt a different theory of penalty?

And he's given an example.

Do you... do you adopt that argument here?

And do you think that is a justification that you want to rely on in this case?

Mr. De Nicola: Yes, we do adopt the theory of incapacitation, and we do rely on incapacitation as a theory that justifies the sentence in this case.

Justice Souter: All right.

Here's the problem that I have with that, and this is... this is... this is what I wish you would address.

If we allow, for purposes of proportionality or gross disproportionality analysis, this kind of... the consideration of varying intentions... retribution, incapacitation, deterrence, and so on... and every time the State gets to a very high offense, the State says,

"Oh, we've changed the theory. "

"We've gone from deterrence to retribution. "

it seems to me that it makes this kind of analysis of comparables... this proportionality analysis... impossible because we no longer have two comparable entities on either side of our comparison.

What we have is a low sentence on the one hand for deterrence, and a high sentence for incapacitation or retribution.

We have apples and oranges instead of oranges and oranges.

So my question is, If we accept the State's option to say,,don't we read comparability analysis right out of the law?

Doesn't it simply become logically impossible?

Mr. De Nicola: Well, I think it becomes much more difficult, but I don't think it necessarily becomes logically impossible, because I think there is still room for judicial scrutiny, within the context of the Harmelin narrow proportionality principle, to take a hard look...

Justice Souter: But my problem is, I don't know what we're supposed to... what we can compare for comparable examples on proportionality analysis if it can be fundamentally affected by the State's change of intention from one theory in one crime, or one set of penalties, to another theory in another set of penalties.

I don't see what we can compare.

We no longer have comparables.

Mr. De Nicola: Well, but I think the Court can still look at whether the phenomenon of... as in this case, of heightened recidivism based on prior violence, or serious offenses threatening violence and triggered by a new crime that, say... that's classified as a felony by the legislature and that offers a sentence of... a lengthy sentence, but that still offers a possibility of parole...

Justice Scalia: I guess the conclusion that Justice Souter's questions would lead to is that a State cannot use any factor except retribution.

Or if it uses any other factor, it does so at the risk of our simply holding it to be disproportionate.

Mr. De Nicola: Yes, Your Honor...

Justice Scalia: And I don't know that our... I'm sure that our cases don't support that.

Mr. De Nicola: It... and I acknowledge it... to Justice Souter, it makes it a very difficult situation.

But under Harmelin, those, I think, are penological objectives that the Judiciary ought to defer to the State.

Justice Souter: But maybe... maybe, and I... we've... we haven't said this... maybe our assumption is that the State, in establishing a penal system, is going to establish it on a set of consistent and neutral principles from beginning to end.

Would that be a legitimate basis for us to ground our constitutional analysis?

Mr. De Nicola: No, Your Honor.

It disables the states from changing... from dealing with changing conditions.

Argument of Michael Chertoff

Chief Justice Rehnquist: Thank you, Mr. De Nicola.

Mr. Chertoff, we'll hear from you.

Mr. Chertoff: Mr. Chief Justice, and may it please the Court: I think the last series of questions which Justice Souter posed to Mr. De Nicola really framed the issue in light of this case's most recent pronouncement in Harmelin... this Court's most recent pronouncement in Harmelin

I would have read Harmelin as establishing two principles, at a minimum.

One is, the analysis is not proportionality; it's gross disproportionality, an extremely rare basis to invalidate a statute.

Second, we recognize that the states are entitled to adopt different penological theories, or a mix of theories.

In fact, I would have thought that a state's entitled to say, for example, that certain types of crimes ought to be addressed in terms of retribution; other types of crimes posing other kinds of issues can be dealt with in terms of deterrence and incapacitation.

And if the consequence of that principle is that this Court has very limited review on comparability of sentences, at least where we are dealing with sentences that allow for the possibility of parole, then I think the conclusion is that it is the extremely rare case in which a sentence gets...

Justice Breyer: Well, why isn't that this case?

I mean, I don't know how to approach proportionality other than to say, What sentences are given for the same crime, or what crimes are treated with the same sentence?

Now, suppose, looking at that, I find this is the rare case.

If it isn't, why isn't it?

I mean, all the information we have, as I've said before, seems to suggest that this is higher by a factor of two or three times anything else you can find.

First of all, although there's nothing in the record to speak to what the pre-1977 proportions were in terms of sentencing, we do know, for example, that elsewhere in the country there have been comparable sentences.

We've cited in the United States...

Justice Breyer: Cited a lot of instances in which the law permits such a sentence, but that's quite different from saying there was such a sentence.

Mr. Chertoff: Actually, I think in footnote 13, we've cited several cases in other states where you have very comparable punishments, where you have larcenies between 4 and $700 as the third strike...

Justice Breyer: And do you have instances where people were sentenced to 25 real years in prison for having committed such an offense?

Or were you citing that the law would permit such a sentence?

Mr. Chertoff: We cited review and rejection of disproportionality challenges in one case in Nevada to a life sentence without parole for a grand larceny of...

Justice Breyer: Good, okay, thank you.

Mr. Chertoff: $476, and a similar one, I think, in South Dakota.

Also, of course, as we look at the current sentencing regime, this is not, as in Solem versus Helm, where you have single judge who is apparently an outlier under the state sentencing scheme.

In this case, if one takes, in fact, a petitioner's own figures, you have at least 2 to 300 individuals whose third strike, under the California scheme as it now exists, has, in fact, been a property-based crime.

And I think the most compelling reason why this is not that very, very rare case where we strike down a sentence is precisely what Justice Ginsburg has been repeatedly asking about, the discretion that the courts have to tailor the particular sentence in this case to the facts of the case.

If we look at the record in this case, in the joint appendix, the sentencing judge carefully considered the entirety of the file with respect to the trigger... or the predicate offenses, which involved, actually, three burglaries in the course of a single month, one of which involved pulling a knife and threatening somebody, as well as at least nine prior offenses.

And interestingly, in no case since 1988 had the petitioner ever successfully completed probation or parole.

He was always violating probation or parole by committing his next offense.

And that's precisely what the sentencing judge looked at and explicitly referred to in rejecting the request on the part of the petitioner either to downgrade the triggering offense to a misdemeanor, or to eliminate some of the strikes.

And I would have thought that is precisely what we expect and want judges to do in a rational sentencing system.

Justice Souter: In effect, you're... going back to the beginning of your argument, I think you're... I think you're saying that what the judge here did in rejecting the request to downgrade or to disregard, in effect, was saying,

"Yes, I am finding that this is a case in which it is appropriate to sentence on an entirely different theory, a theory of putting them away, as opposed to a theory of deterrence. "

and I... that seems to be the logic of what's going on.

Mr. Chertoff: That's correct; an entirely different theory, though, that is embraced by the State in passing this law.

Justice Souter: And may I ask you one more question on that?

Because again, you started toward it in responding to me at the beginning.

Like you, I came in here assuming that the State could change its theories.

If that is so, then I guess what that means for proportionate or gross disproportionality analysis is this: A State can do it and can pass our Eight Amendment test if it has a reasonable basis for saying,

"We are going, under certain circumstances, to say there is a change to theory of sentencing. "

"The theory changes from deterrence or mere retribution to a theory or public protection, putting away the person who simply will repeat and repeat and repeat. "

So, for purposes of our proportionality analysis, the question would come down, Do they have a reasonable basis for doing that under their statute, in general?

And in particular, is there a reasonable basis for saying that this is a case for that?

And if the answers to those two questions are yes, then it passes the test.

Is that... would you adopt that analysis?

Mr. Chertoff: I would absolutely agree that if it satisfies those two, it passes the test.

That's not to say that if it flunks those, it automatically fails the test.

But certainly if you meet those conditions, I think you pass the test.

And I think there's a common sense to that.

One could look, for example, at certain types of violent crimes, like murders and rapes and say, irrespective of whether it was a crime of passion or something that will never happen again,

"It is so heinous, our philosophy is we have to punish it. "

But one can also look at comparatively small crimes, at least if they're felonies, and say,

"If someone is repetitiously unable to conform their conduct to the requirements of the law, we don't have to wait until he commits the next felony or the next two felonies before we put an end to it. "

And interestingly, if one goes back Blackstone, who talks a little bit about the issue of proportionality as it related back in his day, he discusses the fact that when you deal with habitual offenders, it would be cruel to the public to simply allow that person to get out again and commit their next crime.

So, I don't know that it's so much that the State changes its theory, as that the State adapts its theory to the particular type of crime and particular type of offender.

And that's, of course, what we want to have in sentencing.

And, finally, I would say this.

In a scheme like California, where the state judge has the power to tailor to the particular offender and the particular offense what the right answer is, for the federal courts to come in under gross disproportionality analysis and recalibrate that... even if, sitting as state trial judges, the justices might feel we would do it differently... would be essentially converting the courts into a constitutional sentencing commission.

And if one looks at the companion case...

Justice Kennedy: Excuse me, would be essentially to...

Mr. Chertoff: Convert the court into a constitutional sentencing commission.

Doing the kind of analysis that we now have, a sentencing commission...

Justice Breyer: And that would be a very bad thing.

I agree.

Mr. Chertoff: [Laughter]

Mr. Chertoff: It would be a... certainly very complicated thing, Justice Breyer.

So... and if one looks at the companion case, Andrade, and the subsequent cases in the Ninth Circuit that have flowed from that case, one sees this phenomenon beginning to emerge, where every fact pattern is evaluated slightly differently.

One court views burglary as being a violent offense; one court says it's not a violent offense.

Justice Kennedy: Could you argue that, because discretion is consistent with the goals of the statute before the sentencing, that some discretion is also permitted to a reviewing court after the sentencing, and they can still maintain the symmetry and the purpose of the statute?

Mr. Chertoff: The state law could certainly provide for some kind of review as a matter of state sentencing law in terms of abuse of discretion by the sentencing judge.

Justice Stevens: But in this... in California, does the appellate court ever set aside sentences on the ground there was an abuse of discretion to invoke the three strikes law?

Mr. Chertoff: I know of cases where they have affirmed trial judges that have set aside strikes.

I don't know of a case...

Justice Stevens: No, I... has... has a trial judge ever been set aside for imposing the third strike?

Mr. Chertoff: I'm not aware of it.

Justice O'Connor: I don't think...

Mr. Chertoff: I'm not aware...

Justice Kennedy: there are any...

Mr. Chertoff: of such a case.

Certainly the state law could allow that to happen.

If there are no further questions, I will return the rest of my time to the Court.

Rebuttal of Quin Denvir

Chief Justice Rehnquist: Thank you, Mr. Chertoff.

Mr. Denvir, you have one minute remaining.

Mr. Denvir: Your Honor, the point I... I'd like to make two points.

One is, if the discretion in... under the California law is very limited.

One thing would be to treat a wobbler, if it is a wobbler, and reduce it to a misdemeanor; so you would go from 25 to life, or life, to one-year maximum penalty.

That's not used very often.

The other one is to strike a prior conviction.

But that's a... the California Supreme Court in Romero said that's a very limited discretion, that it is only when you can find that this offender is outside the,whatever that is.

And there's an amicus brief filed by the Los Angeles public defender in Romero that shows that that discretion has been used very little in California.

So the... this limited discretion has no effect on it.

The only other point I'd make, as far as the repetition... as far as the labeling, if all the legislature has to do is say,

Mr. Chertoff: The opinion of the Court in two cases will be announced by Justice O’Connor.

Argument of Justice O’connor

Mr. O’connor: I will announce first the opinion in Ewing versus California, No. 01-6978.

The case comes on writ of certiorari to the Court of Appeals of California’s Second Appellate District.

California’s Three-Strikes Law was designed to protect the public safety by ensuring longer prison terms and greater punishment for repeat felony offenders.

Under the Three-Strikes Law, defendant who is convicted of a felony and has previously been convicted of two or more serious or violent felonies must receive a sentence of at least twenty-five years to life in prison.

While on parole from a nine-year prison term, the petitioner stole three golf clubs worth nearly $400 a piece from a pro shop, a California jury convicted petitioner of felony grand theft.

The prosecutor alleged and the Trial Court found the petitioner had been convicted previously of four serious or violent felonies.

In sentencing petitioner to twenty five years to life, the Trial Court declined to exercise its discretion either to reduce petitioner’s felony conviction to a misdemeanor or to dismiss the allegations of some or all of his prior convictions.

The California Court of Appeal affirmed concluding the petitioner’s sentence did not violate the Eight Amendment’s prohibition on cruel and unusual punishment.

The Supreme Court of California denied review.

In an opinion filed with the Clerk of the Court today, we affirm the California Court of Appeals' decision.

In enacting the Three-Strikes Law, the California Legislature made a deliberate policy choice that individuals who have repeatedly engaged in serious or violent criminal behavior and whose conduct has not been deterred by more conventional approaches to punishment must be isolated from society in order to protect the public safety.

Though, Three-Strikes Laws may be relatively new, we have a long-standing tradition of deferring to State legislatures in making and implementing these kinds of important policy decisions.

The Constitution does not mandate the adoption of any one penalogical theory and nothing in the Eight Amendment prohibits California from deciding to incapacitate repeat offenders like petitioner who have already been convicted of at least one serious or violent felony.

We have long recognized recidivism as a legitimate basis for punishment and it is a serious public safety concern in California and across the nation.

Any criticism of the law should be directed at the legislature which is primarily responsible for making the policy choices that underlie any criminal sentencing scheme.

Petitioner’s sentence is long but so is his criminal history.

He has served nine separate prison terms and committed most of crimes while on probation or parole.

His prior strikes were serious felonies including robbery and residential burglary.

In weighing the gravity of his current offence, we must also place on the scales petitioner’s long record of recidivism.

Though long, petitioner’s sentence reflects a rational legislative judgment that is entitled a deference.

Justice Scalia and Justice Thomas each have filed an opinion concurring in the judgment; Justice Stevens has filed a dissenting opinion which Justices Souter, Ginsburg, and Breyer have joined; Justice Breyer has filed a dissenting opinion in which Justices Stevens, Souter, and Ginsburg have joined.

Argument of Justice Breyer

Mr. Breyer: As Justice O’Connor said, Justice Stevens, Justice Souter, Justice Ginsburg and I dissent that the crime at issue here consists of theft of three golf clubs with a sticker price totaling $1,197.

The offender has a prior criminal record that includes four prior felony convictions arising out of three burglaries, one with a knife.

The sentence consists of twenty five years of real prison time not mitigated by any possibility of parole.

The legal question is whether this sentence is grossly disproportionate.

In answering this question, we recognize, the four of us, what this court has previously held.

First, the Eighth Amendment does apply to a sentence for a term of years; second, the Constitution does leave the States with great sentencing leeway forbidding only the rare sentence at the outer bound, and third, it is important for courts to apply objective criteria in so far as possible.

We have tried to apply reasonably objective criteria and our conclusion is that this case does present that rare case where a punishment is grossly disproportionate.

In our view, comparative sentencing practices provide the most reliable objective measure of proportionality, but we accept, at least for argument’s sake, the majority's view that we should make these comparisons only after first determining that a sentence crosses a legal threshold, a threshold that we assume is designed to separate whether perfectly innocuous sheep from the potential goats.

The sentence here, in our view, does fall within that potential goat category.

For one thing, it is similar to but not identical with the recidivist sentence that this Court struck down in Solem versus Helm, the real time sentence in this case is shorter.

It is twenty five years without parole compared with life without parole in Solem, but that difference twenty five years versus life simply puts this case into a twilight zone of legal uncertainty.

That uncertainty adding plausibility to the defendant’s legal attack helps the sentence cross the legal threshold.

For another thing, it amounts to application of one of the most severe punishments available to one of the less severe forms of criminal behavior.

However we measure that conduct severity, including which we do through use of the Government’s own criteria.

Finally, experienced judges, namely those who sentenced offenders in the 40,000 actual proceedings upon which the Federal Sentencing Commission based its federal guideline, apparently also would have thought this sentence unduly harsh.

For the Commission use neither prior shoplifting nor other similar theft defenses as a basis for specially augmenting a recidivist sentence.

So, we conclude at the least the Court should have undertaken a comparative sentence analysis.

Now, the comparative sentence analysis here shows that this sentence before us is out of line and by a considerable degree with prior sentencing practice in California as well as prior and present sentencing practices in other States and in the federal system.

When we make the determination, we note that what matters is real time served, not the time that sentencing statutes authorized, and we asked two questions: first, how do other jurisdictions punish similar offenders namely recidivists who engage in similar conduct?

Second, for what other form of criminal conduct do other jurisdictions reserve this kind of severe punishment, twenty five real years in jail?

I would summarize our answers as follows: As to the first question, the State supported by the Federal Government has found precisely one relevant example of another jurisdiction's similar sentence outside this California Three-Strike Law context.

There is good reason to believe that the fall that there is only one does not lie in the research.

After all, it would be illegal to impose a sentence anywhere near twenty five real prison years in all but a handful of states, and even as to those latter handful, there is very little reason to believe that judges do impose the maximum sentence that the law in those few states permits them to impose.

Given a present population approaching two million, that single example of a relevant similar sentence that State and Federal Governments together have been able to find suggest that outside contemporary California such sentences are truly unusual.

It does not suggest the contrary.

As to the second question, the kind of conduct that this type of severe punishment is reserved for in other jurisdiction twenty five years real time, in those other jurisdictions, the kind of conduct involves recidivists who go on to commit murder, air piracy, drug offenses involving what we say twenty pounds of heroine, robbery involving serious bodily injury in a million dollars and so forth.

In California before the Three-Strikes Law, 90% of all nonrecidivists first-degree murderers served less than twenty real years in prison, and even now, California caps prison time at ten years or less for nonrecidivist crimes such as voluntary manslaughter and arson involving great bodily injury.

It reserves Ewing sentence twenty five real years for nonrecidivist first-degree murderers.

Now, compare with this conduct, the conduct here at issue, theft of three golf clubs with a sticker price totaling $1,197.00.

Now, we like the majority recognize the Constitution does permit California to adopt a new stricter sentencing system and that is what it has done with the Three-Strikes Law, but after looking as we do in the opinion in some detail at that law, we can find no administrative consideration or other considerations that could justify the sentence given here for this type of crime.

For these and other reasons set forth in our opinion, we would find the sentence grossly disproportionate and hold it unconstitutional.